Court File and Parties

COURT FILE NO.: FC-13-167-1 DATE: 2019/06/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MATEUSZ FILIP TOMASZEWSKI – Applicant v. JENNIFER ALLIN - Respondent

BEFORE: Mr. Justice Robert L. Maranger

COUNSEL: Shawn Duguay, for the Applicant Leonard Levencrown, for the Respondent

HEARD: June 11, 2019

Endorsement

[1] This was a motion brought by Mateusz Filip Tomaszewski, (the father) for an Order scheduling his summer holiday time with his daughter, Alia Danielle Tomaszewski, born February 2, 2011. The father further requests that the Court Order that the child be permitted to travel with him to Germany from June 28, 2019 to July 12, 2019 and that the respondent Jennifer Allin (the mother) provide all of the necessary documents to authorize the travel by no later than June 21, 2019.

[2] The mother resists this motion arguing that the court should wait for a clinicians report from the Ontario Children’s Lawyer’s office (OCL) concerning the best interests of the child at this point in time and suspend the father’s summer access pending the receipt of that report.

[3] The essential factual background to this motion and my findings based on the material filed are the following:

• The parties separated in February 2012.
• They entered into minutes of settlement which formed the final order of Justice Kershman dated March 7, 2014.
• Paragraph 14 of the order sets out the Child’s Schedule and Living Arrangements. It in part provides the child is to reside primarily with the mother subject to specific visitation time with the father at his home.
• Sub-paragraph 14 (h) sets out the summer access and indicates in part that: “…commencing in the year 2015 and subsequently, the father shall be entitled to three weeks summer holidays.… The father shall provide written notice to the mother by no later than March 1 of each year so that there may be sufficient time for the parties to schedule arraignments for the child’s summer arrangements as agreed to by both parties with consideration and reasonable accommodation for the father’s preferred dates.”
• I interpret the order to mean 3 consecutive weeks in the summer.
• However, in the years 2015, 2016, 2017 and 2018 the pattern of arranged summer time that the father had consisted of visits three separate non-consecutive weeks.
• The request this year would break with tradition, as would travelling overseas with the child for a little over two weeks.
• The trip would take place almost immediately following the child’s last day of school before the summer break.
• There is acrimony between the father and mother, the affidavit evidence is contradictory and accusatory.
• At the case conference held in March 11, 2019 Justice Shelston ordered the OCL to prepare a clinicians report because of the level of conflicting reports concerning what the child has said to the respective parent.
• The parties have both fully participated with the intake process and the initial meeting/report is expected on July 25, 2019.
• While the affidavit evidence paints two very different pictures concerning the behaviour of each parent vis-à-vis this little girl. Paragraph 7 of the affidavit of the mother and the photographs appended thereto suggest that something is amiss, between the child and her father. I will not speculate or guess at what the problem may have been, but there was some difficulty concerning access with Alia that took place in May 2019 less than a full month ago.

[4] In matters such as this one, the Court’s singular concern is what is in the child’s best interest.

[5] I would deny the fathers motion and order that summer access be for one week periods pending the initial clinician report from the OCL. I would also deny the request to travel with the child to Germany at this time.

[6] My reasons for doing so are as follows:

• The mother and father have attested under oath to two very different situations respecting the relationship that Alia has with the moving party. If it is in any way as problematic as the mother describes then the two week + trip to Germany is not in the child’s best interest.
• Paragraph 7 of the mother’s affidavit and the apparent “stand-off” does suggest something went wrong in May 2019.
• While the order arguably allows for 3 consecutive weeks in the summer the historical pattern has been 1 week at a time.
• The clinician’s report from the OCL is a valuable tool in ascertaining the likely truth when deciding what is in the child’s best interest in terms of parenting time with her father.
• I would not suspend summer access as requested by the mother but restrict it to one week non-consecutive periods pending the OCL’s report, because the evidence on the whole does not justify doing so.

[7] Therefore, the motion is dismissed and the summer access is restricted to 1 week non-consecutive periods without prejudice to the father revisiting the issue once the OCL’s report/review is ascertained.

[8] Given the nature of the proceedings, I am strongly disinclined to making any costs order, however, if counsel feel they are capable of persuading me otherwise, I will accept one page of written argument from each side, within 10 days of the release of this endorsement.

Mr. Justice Robert L. Maranger Date: June 12, 2019